Resident questions whether school board violated Sunshine Act

Details released on March 21 executive session meeting; experts suggest presentation on reconfiguration probably didn’t meet standards for excluding the public

By Mike McGann, Editor, UnionvilleTimes.com

Residents allege that a March 21 Executive Session during which the potential closure of Chadds Ford Elementary School was discussed was a violation of the state Sunshine Act.

With just days to go before a contentious Board of Education election, the Unionville-Chadds Ford School District this week released multiple versions of a presentation given to the school board discussing the potential closure of Chadds Ford Elementary School — as one of a number of elementary school reconfiguration options — in March during an executive session, prompting allegations by at least one local resident that the presentation was a violation of the state’s Sunshine Act.

The presentation was released this week after Pocopson resident Kristin Hoover voiced complaints about the presentation, after an exchange of comments with school board member Keith Knauss on The Unionville Times last week. Hoover said that she informed the board and administration she would file a Right To Know request, she said, prompting the district to release the information. District officials dispute those claims.

“The Board is so intent on being right and defending its actions, they have lost perspective,” Hoover wrote in an email which she shared with The Unionville Times after the presentation was made public. “The whole thing is ridiculous. You look bad. Right now, the Board looks afraid that the public will find out a damaging secret.”

The executive session — a meeting of the board from which the public is excluded — was held on March 21, following that month’s regular Board of Education meeting at Pocopson Elementary School. During that meeting, in the school’s library, the district’s Director of Elementary Education, Dr. John Nolen— gave a PowerPoint presentation offering four options, including closing Chadds Ford, and having three elementary schools; having two kindergarten to second grade schools and two fourth and fifth grade schools; having three K-3 schools and one 4-5 school; two K-2 schools, two 3-6 schools and have just grades 7 & 8 at Patton Middle School.

There is no disagreement about the above — all concerned confirmed the basic details of presentation. As discussions continued through the spring, only the K-2/3-5 plan was deemed viable by the district. A subsequent proposed district goal to study such a configuration was rejected by the school board last week.

This PowerPoint slide was apparently inserted at some point after the March 21 Board of Education Executive session; but it was initially released as part of the original presentation.

The dispute, however centers on two issues: whether it was proper that the subject was was discussed in executive session and — with personnel and real estate issues cited as the reason — and that the presentation appears to have been changed prior to the initial release, with questions surrounding a specific slide that it is alleged was added after the fact, suggesting that they were “Three Scenerios (sic) not Considered Viable.”

District sources that were in attendance at the executive session confirmed that the slide was not part of the original presentation. That slide and a later release of the original presentation, minus the slide, have some in the community claiming there was a “cover-up” — allegedly an intentional effort to retroactively suggest that three of the four options, including closing Chadds Ford, were never seriously considered — a charge vehemently denied by district officials, attributing the changes to later use of the presentation for other audiences which reflected an evolution of the concepts as the discussions continued. Ultimately, the original presentation was released by the district.

While the changes of the content of the presentation remain a matter of some contention, more questions seem to be focusing on whether or not the March 21 meeting met the legal requirements for an executive session. The answer to that appears to be more clear: the content of the meeting probably did not meet the standards as defined under Act 65, experts in the commonwealth’s Sunshine Act say.

Under 65 Pa.C.S.A. § 708., a public body can only meet in private for six reasons: a personnel matter involving a specific individual, hiring/termination/performance evaluation/promotion/discipline; collective bargaining contract negotiation; to consider the lease or purchase of real estate (a specific transaction, not the decision to seek to buy or sell a property, but rather the details of the transaction of said sale/purchase, including pending offers on specific properties); consulting with an attorney on matters of litigation; to discuss matters that would violate confidentially, i.e. specific student/parent issues; college and university boards can meet in private to discuss academic admission and standing.

The March 21 meeting would not appear to have met those standards, open public meeting experts suggest.

“Possibly, the board would say that any discussion about closing a specific school would necessarily be a discussion affecting the employment of those specific individuals who work there,” said Kim de Bourbon, Executive Director, Pennsylvania Freedom of Information Coalition, a watchdog group monitoring Sunshine Law and Open Public Record issues in the commonwealth. “But that broad-based interpretation is not the intention of this provision. It is intended to allow discussion of specific personnel issues involving specific employees, such as potential hiring, firing, and disciplining.”

Terry Mutchler, Executive Director of the Pennsylvania Office of Open Records, confirmed that broad personnel matters — something that might mean a reduction in force — are not sufficient grounds for an executive session, but must be restricted, under the law, to specific material discussions about individuals.

The law also states that the individual elected officials are responsible for deciding whether a topic is appropriate for an executive session — and it would be those officials that would be subject to charges.

Although violations can be prosecuted — in this case the enforcement falls to the county District Attorney, Joseph Carroll in Chester County, G. Michael Green in Delaware County — a clear intent to violate the Sunshine Act is required to bring charges. Violators are subject to a $100 fine, plus court costs.

Board members say they felt were guided by district staff and were complying with the law.

“The administration requested the March executive session to present work they had done on one of their goals,” school board president Timotha Trigg said in a prepared statement. “Does anyone really think I should have denied them that opportunity and told them I didn’t trust their judgment in interpreting the Sunshine Law? The Unionville-Chadds Ford administration and legal team has an impressive track record on Sunshine issues. I believe their judgment is sound and their decision was correct.”

Board vice president Frank Murphy echoed Trigg’s sentiments.

“I believe that everything the board and (former) Superintendent (Sharon) Parker did was appropriate and it will be proven out,” Murphy said.

Parker, who led that administration at the time of the March 21 session, did not respond to a request for comment on the matter.

Trigg and board Murphy are seeking reelection on Nov. 8 in Region C, along with Kathleen Do, Gregg Lindner and Sharon Jones all competing for three seats. Eileen Bushelow, the only other incumbent seeking reelection is unchallenged in Region B. A single Region A seat is being contested between Victor DuPuis and Rob MacPherson.

6 Comments

It appears that the school board directors relied upon the advice of counsel and the Superintendant when the study in question was discussed in Executive Session. There did not appear to be an attempt to hide the preliminary reconfiguration study whatsoever, as it was released to the public. I fail to understand the argument over what the School Board Directors did that was wrong or how it negatively impacted the district, nor do I understand how this is becoming an issue six-plus months after the meeting in question unless it is designed to be an “election issue.”

To my observation, it appears politics is motivating this discussion. I would certainly think it better for the candidates to stick to the substantive issues related to the district.

I don’t wish to get into a back-and-forth here so I’ll express a few final thoughts and bow out.

1. With regard to the relative simplicity or complexity of the Sunshine Law, I refer anyone who is interested to the law itself which can be found here: http://www.dced.state.pa.us/public/oor/SunshineAct.pdf. It is a total of eight pages long including a cover page and table of contents. The six exceptions to the requirement for public meetings can be found in Section 708 and are captured quite well by the author of the article. As with any law, one could form an argument on one side of the law or the other based on careful word parsing, but I believe that if one has a basic desire to be “transparent”, as several of the board members actually state in their platform, it should be fairly easy to figure out when a particular set of subject matter should be discussed in a public forum.

2. I fail to see how the number of Sunshine Law cases brought in any way directly indicates that the law is complex. Perhaps it is simply that politicians have a tendency to carry out as much activity as possible while not subject to the bright light of public observation. There are thousands of robbery cases brought every year but I don’t think that is a result of confusion over the rules defining robbery. Similarly, the number of Sunshine Law cases brought every year is not necessarily indicative of the law being too complex to understand or comply with.

3.The main point of my initial posting was that board members should take responsibility for a decision that they made instead of trying to deflect that responsibility onto others. If the members of the board maintain that they made the decision to discuss this matter in Executive Session in good faith and truly believe that the subject matter qualified for the exceptions stipulated by the Sunshine Law, then they should simply state that along with the logic used to make that determination.

4. In addition to calling me “oblivious”, Mr. Knauss concludes by implying that I am motivated by political gain. Mr. Knauss does not even know who I am, so I am fairly certain he has no way of ascertaining my motivations. My true motivation is simply to ensure that the school district I specifically moved here for maintains the qualities that made me choose it in the first place. I would suggest that if anyone involved in this situation has political motivations, it would be the folks who actually depend on getting elected.

It’s unfortunate that the editor has intertwined three issues without adequate explanation.
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The first issue is whether the Board violated the Sunshine Act by hearing a power point presentation on building utilization in executive session.
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The second issue if whether the presentation itself is a public document as defined under the Right to Know Law.
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The third issue is the assertion that the Board and Administration are hiding something from the public by not releasing the “real” presentation.
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The Board acted in good faith to comply with both laws. I have extensive experience with both laws and my advice meshed with the administration’s advice. Let’s remember that Superintendent Parker became highly knowledgeable about both laws backed by expert advice from the District’s solicitor. To think that she would purposefully advise the Board to act counter to the law or she would participate silently in proceedings counter to the law is ludicrous.
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Mr. Pandolfi in his letter above is oblivious to the complexity of the law when he asserts that board members “should be very familiar with the six basic conditions of the Sunshine Act”. Of course, we’re familiar with the basics of both the Sunshine Act and the Right to Know Law. But the difficulty in applying the law in actual practice can be seen by the over 2,300 cases adjudicated by the Office of Open Records in the first two years the RTK law was in effect. Hundreds more cases are pending.
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If someone is really wants to know about whether either or both laws were violated (as opposed to getting an inconclusive opinion from an expert based on incomplete information supplied by a reporter) I’d implore them to take formal action to involve a knowledgeable neutral third party. If someone feels the RTK Law was violated or we’re hiding the “real” presentation, it’s simple and free to submit a Right to Know Request to the Office of Open Records. If someone feels the Sunshine Act was violated I’d invite them to bring suit in the Chester County Court of Common Pleas (I think the charge is $125 and the District Attorney does not have to be involved in any way as implied by the reporter in the article above) . I, as a board member, would welcome legal involvement, including sworn testimony, to help those who sincerely want to understand the situation and to put an end to the drama created by those only motivated by political gain.
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These are my opinions and may or may not represent those of other Board members.

As the article states, it is the responbility of the elected officials of the board to decide what is appropriate for an executive session. Ms. Trigg and Mr. Murphy, as President and Vice President of the board, should be very familiar with the six basic conditions of the Sunshine Act. This is not the first time I’ve seen members of this board attempt to deflect blame onto the school administration instead of taking responsibility for an issue themselves. Personal responsiblity is one of the first things we teach our children. Our school board members should try to set a better example.